February 1, 2012

After new DOJ fast-track policy for immigration cases, what will (and should) come of fast-track for drug cases?

As reported in this post yesterday, the Justice Department (via this new memorandum, dated January 31, 2012) has made a significant policy shift concerning the future operation and application of so-called "fast-track" sentencing discounts in immigration cases. But, as a number of folks have pointed out to me, this new memo does not speak directly to the future operation and application of fast-track sentencing reductions in drug cases.

In my post yesterday, I wrongly assumed that the new DOJ memo/policy meant the end of fast-track programs in drug cases. A careful re-read of what I am calling the Cole Fast-Track Memo, however, reveals that footnote 6 obliquely speaks to fast-track issues in other cases:

Further, the [Justice] Department has authorized fast-track programs for offenses other than felony illegal reentry [in a few federal districts]. These other programs will continue to be authorized until March 1, 2012. This extension will allow for a substantive review of these programs in due course.

In other words, it appears that the couple of districts with fast-track programs providing sentencing discounts in drug (and a few other) cases can and will continue to have these programs in operation for at least another month. But what will eventually become of these programs apparently is to remain an open and unsettled issue, and these programs now appears to be even more distinctive --- dare I say, even more the obvious source of significant geographic prosecutor-driven disparity --- now that DOJ has made fast-track discounts available to all immigration defendants nationwide.

As I mentioned in this post yesterday, fast-track departures have long been the most opaque facet of the federal sentencing system. I am pleased DOJ has a new policy that serves to make, for immigration cases, these departures more transparent and consistent. But it now remains to be see whether and how DOJ will also set forth policy guidance that makes these departures more transparent and consistent for all other kinds of cases.

UPDATE: Over here at his Life Sentences Blog, Professor Michael O'Hear has an extended discussion of the new Cole fast-Track memo in a lengthy post titled "“Fast-Track” Goes National for Illegal Reentry; Now How About Covering More Offenses?." Here is how that post concludes:

So how about now expanding fast-track on a district-by-district basis in order to take advantage of the localization it offers with respect to other crimes besides illegal reentry? The original premise of fast track was that it was only for high-volume crimes, but the Cole Memo now formally expands fast-track for illegal reentry to districts that have few reentry cases, so high volume can no longer be considered a necessary condition for giving a category of cases fast-track treatment.

Let me suggest one concrete example of where this may be appropriate. Felon in possession cases strike me as generally of local concern, and we know that views about the blameworthiness of gun possession vary tremendously from one region of the country to another. Offering fast-track benefits in these cases in districts with strong pro-gun attitudes would thus help to bring federal sentences in greater conformity to local values. I think much the same argument could be made with respect to cases of simple possession of drugs, and perhaps also to retail-level drug dealing.